REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 264 OF 2020 (Arising out of SLP(Criminal) No.3780/2018) SANTOSH PRASAD @ SANTOSH KUMAR …APPELLANT VERSUS THE STATE OF BIHAR …RESPONDENT J U D G M E N T M.R. SHAH, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 7.2.2018 passed by the High Court of Judicature at Patna in Criminal Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal preferred by the original accused and has confirmed the judgment and order of conviction passed by the learned Sessions Court convicting the accused for the offences punishable under Sections 376(1) and 450 of the IPC, the original accused has preferred the present appeal. 1 2. That the appellant herein – original accused was tried by the learned Sessions Court for the offences punishable under Sections 376(1) and 450 of the IPC. A written complaint was filed by the prosecutrix – PW5 on 16.09.2011 before the local police station against the accused alleging, inter alia, that in the preceding night at about 11:00 p.m. she awaken after hearing some sound and whereupon in the light of the mobile phone she found the accused – brother of her husband whereupon she made query. Instead of giving any reply, he committed the rape upon her. According to the prosecution and as per the prosecutrix, thereafter the accused ran away and after getting an opportunity she raised alarm and the neighbours came there including one Suman Devi, her cousin Gotini as well as Shanti Devi, her cousin mother-in-law. She disclosed the event/incident to them. According to the prosecutrix, she informed her mother-in-law and father-in-law who were at Gaya. At the time of incident, her husband was away from the village. Thereafter on their arrival she came to the police station along with them and submitted written report. FIR was registered against the accused being P.S. Case No. 325/2011. Investigation was carried out by the officer in-charge of Makhdumpur Police Station. He recorded the statement of the concerned witnesses. The clothes/apparels of the prosecutrix were seized and were sent to FSL. He also collected the medical report from Dr. Renu Singh, PW7, who examined the victim. Thereafter on conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused for the offences punishable under Sections 376(1) and 450 of the IPC. 2 As the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court which was transferred to the Court of learned Additional Sessions Judge, Ist, Jehanabad, which was numbered as Sessions Trial No. 456 of 2011/90/2012. The accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the aforesaid offences. 2.1 To prove the charge, the prosecution examined in all eight witnesses including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7). Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the prosecution and therefore were declared hostile. The prosecution also brought on record the FIR, Injury Report and FSL Report. After closure of the evidence of the prosecution, further statement of the accused under Section 313, Cr.P.C. was recorded. The case of the accused was of total denial. Thereafter, on appreciation of evidence on record, the learned trial Court held the accused guilty for the offences under Sections 376(1) and 450 of the IPC. The learned trial Court sentenced the accused to undergo 10 years R.I. for the offence under Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the IPC. 2.2 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court, the accused preferred an appeal before the High Court. By the impugned judgment and order, the 3 High Court has dismissed the said appeal. Hence, the accused has preferred the present appeal. 3. Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused has vehemently submitted that in the facts and circumstances of the case both the courts below have materially erred in convicting the accused for the offences under Sections 376 and 450 of the IPC. 3.1 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that the courts below have not properly appreciated the fact that as such the medical report does not support the case of the prosecutrix/prosecution. It is submitted that the evidence of the prosecutrix is not supported by the medical evidence since no stains of semen or blood were found on the clothes of the prosecutrix. It is submitted therefore that it creates serious doubt about the credibility of the prosecutrix. 3.2 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that there was a delay in lodging/reporting the case to the police. 3.3 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that both the courts below have not properly appreciated the fact that there was a family enmity between the accused and the family of the prosecutrix with respect to the land dispute. It is submitted that no independent witnesses have been examined by the prosecution. It is submitted that as there was a dispute between the accused and 4 the family members of the prosecutrix, non-examination of the material independent witnesses, the case of the prosecution suffers from serious doubts. 3.4 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that as per the doctor and the medical report/injury report, no injury was found on the person of the victim and private parts especially. It is submitted that therefore in the absence of any injury the story put forth by the prosecutrix/prosecution is not believable. 3.5 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that except the deposition/evidence of the prosecutrix which has not been corroborated by the medical evidence, there is no other independent and cogent evidence to connect the accused with the guilt. 3.6 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that even the doctor has categorically said that there is no physical or pathological evidence of rape. 3.7 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that even in the FSL report/serological report of the blood and semen allegedly found on the petticoat of the prosecutrix was inconclusive. It is submitted that therefore the serological report of blood and semen, allegedly found on the petticoat of the prosecutrix, does not help the prosecution. 5 3.8 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that even there are material contradictions in the deposition of the prosecutrix. It is submitted that the prosecutrix has deposed during trial that she had given an oral statement before the police whereas the FIR has been lodged on the written report and the scribe has neither been examined nor produced before the Investigating Officer. 3.9 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that even there is a material contradiction with respect to lodging of the FIR/the written report. It is submitted that as per the prosecutrix she had gone to the police station at 10 O’clock and the police had enquired at 10 O’clock. However, the FIR is registered at 4:00 p.m. It is submitted that therefore it appears that earliest version has been suppressed and therefore the FIR is hit by Section 162 Cr.P.C. 3.10 It is further submitted by Shri Santosh Kumar, learned Advocate appearing on behalf of the original accused that even the story put forth by the prosecutrix in her evidence that she had seen the accused jumping the fallen boundary wall and when she shouted the accused pushed towel in her mouth and she identified him in mobile light is not believable at all. It is submitted that even according to the prosecutrix she was sleeping in her room having door closed. Thus, she will not be able to see any person doing any act outside room. It is submitted that neither the number of the mobile nor even the mobile is produced before the investigating officer. 6 3.11 It is further submitted that therefore when the conviction is based on the sole testimony of the prosecutrix and the medical evidence does not support the case of the prosecution/prosecutrix and the deposition of the prosecutrix is full of material contradictions and that there was already a dispute between the accused and the family members of the prosecutrix and no independent witnesses have been examined, it is not safe to convict the accused solely on such testimony of the prosecutrix. In support of the above submission, learned counsel has heavily relied upon the decisions of this Court in the cases of Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133 as well as Rai Sandeep alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21.